IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

 

Criminal Transfer Application No.D-  92   of 2011

 

                                                Before: Mr. Justice Ahmed Ali M.Shaikh, J.

                                                  Mr.Justice Salahuddin Panhwar, J.

 

 

Applicant      :           Ghulam Akber Jatoi, through

                                    Mr.Ghulam Shabbeer Shar, Advocate.

 

Respondents:            Muhammad Ameen, Jawaid Ali, Saeed Ahmed and Noor

                                    Through: Mr.Sahib Khan Kanasero, Advocate.

 

                                    The State, through: Mr.Syed Sardar Ali Shah, A.P.G.

 

Date of hearing        20th. December, 2012.

 

 

O R D E R

 

 

SALAHUDDIN PANHWAR, J:-   Through the instant transfer application the applicant/complainant Ghulam Akber Jatoi is seeking transfer of Special Case No. 102 of 2011 (Re- State V. Muhammad Ameen and others) , arising out of  Crime No. 132 of 2011 of Police Station, registered for offences punishable Under sections 302, 365-A, 511, 147, 148, 149 and 7- Anti-Terrorism Act, 1997 from the file of the Court of  Judge Anti-Terrorism Court, Khairpur to the Court of Judge, Anti-Terrorism, Jacobabad.

 

02.                   The facts, relevant for decision of this transfer application are that complainant Ghulam Akber Jatoi lodged FIR against the Respondents No.1 to 3 and others, stating therein, that on 04.1.2011, he along with his cousin Shah Bakhsh, relative Wazir Ali and  brother Pehlwan Ghulam Sarwar, who participated in “Malhakro”, were on the way to the Otaq of Wadero Sheral Palh, while five persons duly armed with weapons way-laid them; they identified them as accused Muhammad Ameen Jagirani, Jawaid Jagirani, Noor Jagirani, Saeed Ahmed Jagirani , all were having Kalashnikovs  in their hands. They dragged his brother Ghulam Sarwar Jatoi and said that they are kidnapping him for want of ransom. Ghulam Sarwar offered resistance, meanwhile accused Saeed Ahmed caused direct Kalashnikov fire shot injury to Ghulam Sarwar with intention to commit murder and in result whereof he fell-down; thereafter  all the other accused persons made firing; and due to such firing one accused Ameen Jagirani also had received injuries. Thereafter several persons converged there : injured Ghulam Sarwar succumbed to injuries, thereafter F.I.R was lodged. After usual investigation, case was challaned against the assailants.

 

03.       Learned counsel for the applicant/complainant inter-alia contended that three accused persons namely Jawaid, Saeed Ahmed and Noor are absconders, and they have issued threats of dire-consequences to complainant and P.Ws, therefore, the complainant party is in serious apprehension that if they will attend the trial court, they will be murdered in the way; complainant and P.Ws are residents of District Shikarpur, whereas the trial court is located in District Khairpur Mir’s, so also the respondents / absconding accused No.1 to 3 are also residing in District Sukkur; trial Court has issued the summons for proceeding of the case but complainant party is under threats hence is unable to attend the trial Court. Counsel has relied upon the case of Ahmed Ali Khan and other Vs. The State and 08 others reported in 2007 Y L R 1935; case of Ahmed Omar Saeed Shaikh Vs. The State, reported in 2002 SCMR 1562; case of Haji Khawar Saleem Vs. The State reported in 2001 SCMR 905.

 

05.                   Conversely Mr.Sahib Khan Kansero, learned counsel for the Respondents/accused No.1 to 3 has argued that the complainant is absconder in another, case and he is deliberately avoiding to proceed with the case; accused persons have not issued threats to complainant and witnesses, therefore, plea of apprehension is without any substance; complainant with ulterior motive intend to get transfer of this case to area, where they are residing with intention to cause murder of accused persons. He has relied upon the case of Noor Ahmed Vs. The State reported in 2009 M L D 22.

 

06.                   Mr. Syed Sardar Ali Shah learned A.P.G for the State adopted the same arguments of learned counsel for the Respondents/accused No.1 to 3.

 

07.                   We have heard the parties’ counsels’ and have perused the record. From the perusal of record; it reveals that the applicant/complainant has not mentioned the date, time and place regarding threats caused by absconding accused/respondents and also transfer application is silent that under what manner they issued threats to him. It is also matter of record that the applicant/complainant has not approached any concerned police station, regarding such apprehension. Further, it is also evident that applicant/complainant has not moved any application before any authority for the purpose of protection hence the claimed apprehension appears to be vague. However, we are conscious of the facts that a system of Criminal Administration of justice cannot survive without assuring protection to a witness who dares to put his life in danger by coming forward as a witness in heinous offences, more particularly, when it is alleged that witnesses have been issued threats so as to avoid their appearances in court (s) for deposing against accused of heinous crimes, in particular. It is material to mention that if things are taken properly and within spirit of procedure;  a witness has to attend the court for one or two dates for his examination because through National Judicial Policy much emphasis has been put that witness, appeared should not go unexamined without any cogent reason. A witness on his examination is not required to attend the court and the complainant can well be represented through his counsel. In view of such back ground, though the claimed apprehension appears to be without any proof yet since the same has specifically been claimed by the applicant / complainant, therefore, the same cannot be ignored straight away in particularly, when such apprehension is a threat to life.  In the instant case both the parties are claiming danger of their lives in result of transfer, therefore, keeping in view the legal position that the production / appearance of accused is necessary for trial of the matter except where the same is dispensed with by the court itself, we find that it will be proper to provide complete protection to the applicant and his witnesses for their way to attend the hearing before the trial court, more particularly, when, there is no allegation against the honesty of the learned trial court judge. It is worth to add here that there is no cavil to the proposition that the court while considering the transfer of proceedings has to consider the conveyance of both the parties but it is equally settled rule that conveyance of accused and his witnesses outweighed the conveyance of the complainant and his witnesses.

 

08.                   Regarding the case law, we have examined the case keeping in view that in criminal administration of justice, each case has to be decided on its own peculiar circumstances and merits. In case of Ahmed Ali Khan and others (supra)                                    it is held that Court has to place itself in position of the applicant while    examining the reasonableness of apprehension which may entitle a party to seek transfer”.       In case of Haji Khawar Saleem (supra) “the applicant had challenged the manner in which the proceedings were taken by the trial court and orders passed by the trial court”.            In case of Ahmed Omar Saeed Shaikh and 03 others (supra), “this case relates to the murder of Denial Pearl murder case, accused was declared as a dangerous criminal, therefore, due to apprehension; case was transferred from Karachi to Hyderabad”.

12.                   After careful examination of above precedents, we are of the considered view that same are not helpful to the case of applicant/complainant  as facts and circumstances of cited case are entirely different from the case, in hand,  and in similar circumstances,  Hon’ble Supreme Court in case of Muhammad Nawaz Vs. Ghulam Qadir and others reported in P L D 1973 SC 327  has held:-       what is a reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances; and the court must endeavor, as far as possible, to place itself the position of the applicant seeking transfer and look at the matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him. Nevertheless, it is not every incident regarded as unfavourable  by the applicant which would justify the transfer of the case. The test of reasonableness of the apprehension must be satisfied, namely, that the apprehension must be such as reasonable man might justifiably be accepted to have.

 

13.                   Keeping in view the given circumstances and dictum laid-down by the Superior Court, we are of the view that the instant application is devoid of merits; which is accordingly dismissed. However, we direct the trial Court to provide complete protection to the complainant and his witnesses by providing police escort from their residents to the court when their attendance is required and such request has been made by their counsel.

 

JUDGE

                                                                                    JUDGE

Announced on………………

 

 

A.R.BROHI